Guideline 4 – assistance for applications to discharge or vary parenting arrangements

Guideline 4 – assistance for applications to discharge or vary parenting arrangements

Victoria Legal Aid (VLA) may make a grant of legal assistance to discharge or vary a parenting order, or to set aside a registered parenting plan under the Family Law Act 1975, if VLA is satisfied that:

  • there is a dispute about a substantial issue
  • there has been a 'significant change in circumstances' since the parenting orders were made or the parenting plan was registered
  • the matter is a ‘priority matter’ as defined in '2.1.1 – litigation following early intervention and dispute resolution grant' in Guideline 2 – litigation.

Where the matter meets the above guideline, VLA will consider the matter for an early intervention and dispute resolution grant.

Applicants for legal assistance who are found by a court within the last 12 months to have contravened a Federal Circuit Court or Family Court of Australia order without reasonable excuse will not be eligible for a grant of legal assistance under this guideline or will have their grant of legal assistance terminated.

'Significant change in circumstances'

A 'significant change in circumstances' is a change that, if it had occurred prior to the making of the previous orders or parenting plan, would have resulted in significantly different orders or parenting plan being made.

If the 'significant change in circumstances' has been caused by the applicant, VLA will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.

Examples of a 'significant change in circumstances' are where:

  • the mental or physical health of a party has deteriorated to the extent that it affects the child’s safety or welfare
  • a party has spent no time with a child (when they could have) for so long that the child no longer has a relationship with that party
  • a party has re-partnered and the new partner is alleged to be a risk to the safety and welfare of the child
  • a child is now old enough to express an opinion about the current parenting orders and the child’s views that the orders are unsuitable are now obvious from extreme behaviours such as repeated running away or self-harm
  • for a significant period of time, a child has not been living with the party named in the 'live with' paragraphs of the parenting orders or parenting plan
  • there has arisen a likelihood of violence, or physical or mental harm, to the applicant or a child
  • a child has been or is at risk of being removed from the party that they live with pursuant to current orders or a parenting plan
  • a child has been or is at risk of being removed from the jurisdiction of the court contrary to current orders or a parenting plan
  • the party the child lives with needs to move permanently overseas, interstate or elsewhere with the child, and consent is unreasonably withheld by another person.

Examples of changes in circumstances that VLA does not consider to be significant are:

  • the mere passing of time since the original orders were made
  • one party has re-partnered and the new partner poses no risk to the safety and welfare of the child
  • one party is now employed and is using child-care services
  • a child is now old enough to express an opinion about the current parenting orders and the child’s opinion is not shown by any extreme behaviours.